The Petitioner, a business manager, seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree and/or an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner merited a national interest waiver as a matter of discretion. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
Law
To qualify for a national interest waiver, a petitioner must first show eligibility for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 203(b)(2)(B)(i) of the Act.
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent degree followed by five years of progressive experience in the specialty is the equivalent of a master's degree. [If a doctoral degree is customarily required for the specialty, the non-citizen must a U.S. doctorate or a foreign equivalent degree. (delete if doctorate not an issue)] 8 C.F.R. § 204.5(k)(2).
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation p. 2 that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). 1 Meeting at least three criteria, however, does not, in and of itself, establish eligibility for this classification. 2 If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having a degree of expertise significantly above that ordinarily encountered in the field.
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish that they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 T&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion,3 grant a national interest waiver if the petitioner demonstrates that:
- The proposed endeavor has both substantial merit and national importance;
- The individual is well-positioned to advance their proposed endeavor; and
- On balance, waiving the job offer requirement would benefit the United States.
Analysis
A. Duplicate Filing
The instant Form I-290B, Notice of Appeal or Motion, was received on October 27, 2023, within the period allowed for the filing of appeals per 8 C.F.R. § 13.3(a)(2)(i). Subsequent to the filing of this appeal, the Petitioner filed a second I-290B, also timely filed, as a motion to reconsider the same decision by the Director at issue in the instant appeal. On April 3, 2024, the Director dismissed the Petitioner's motion to reconsider.
The regulation at 8 C.F.R. § 103.2(a)(7)(iv) states the following:
Unless otherwise provided in this title, only one of the same benefit request as defined in 8 CFR 1.2 may be submitted at a time or while the same request is pending. Ifmore than one materially identical requests are submitted, USCIS may reject one at its discretion. For purposes of this section, a motion to reopen or reconsider and an appeal that is filed on the same decision will be considered a duplicate request.
We note that this regulation became effective on April 1, 2024, after the Petitioner filed both this appeal and the motion to reconsider. But the regulation is consistent with long-standing USCIS policy regarding the rejection of materially identical filings by the same person for the same immigration 1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii).
benefit. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 89 Fed. Reg. 6194, 6233, (January 31, 2024). As noted in the comments to the final rule, duplicate I-290B filings create jurisdictional conflicts between the AAO and other offices of the Department of Homeland Security. Here, beyond the sections relating to the filing of an appeal or motion, respectively, the briefs submitted by the Petitioner in support of these two I-290Bs are virtually identical. Because the Petitioner's filing of the motion to reconsider rendered moot his earlier filing ofthis appeal, and because the Director has already issued her decision to dismiss the motion, we dismiss the instant appeal.
B. National Interest Waiver
In addition to dismissing the instant appeal as moot, we will also address the Petitioner's assertions on appeal about his request for a national interest waiver. The first prong of the Dhanasar analytical framework, substantial merit and national importance, focuses on the specific endeavor that the individual proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact. Dhanasar, 26 I&N Dec. at 889.
The Petitioner proposes to work as a marketing and property manager for his own company, C-V-H-, that he has operated in the I IFlorida area since 2019. He indicates that the company will provide property management services for vacation rentals, and will assist foreign buyers interested in purchasing vacation rental properties in the area.
In her decision, the Director concluded that the Petitioner had established the substantial merit of his proposed endeavor, but had not shown that it was of national importance. On appeal, the Petitioner asserts that the Director erred by not considering evidence other than his business plan in making that determination.Plan or projections not corroborated The appeal briefrefers to several exhibits in the response to the Director's request for evidence (RFE), including industry reports purportedly concerning the economic impact of vacation rentals on the overall tourism sector in the United States and, more specifically, Central Florida. But those reports are not in the record, as the Petitioner only included the website addresses for those reports on a list of exhibits. The unsubstantiated assertions of the Petitioner's representative relating to the content of these reports, made in the appeal brief and in response to the Director's RFE, do not constitute evidence.Claims not backed by documents See, e.g., Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). Also, even if the Petitioner's representative's assertions about the contents of these reports were substantiated, they would not aid in establishing that his proposed endeavor is of national importance. According to the Petitioner and his representative, the reports indicate that renters of vacation homes contribute to increased spending at local businesses, create jobs for cleaners, landscapers, and maintenance workers, and increase demand for local real estate. But the first prong of the Dhanasar analytical framework focuses on the potential prospective impact of an individual's specific endeavor. While the vacation rental industry as a whole may well have the effects that the Petitioner describes, he cannot rely upon these broad figures to demonstrate the national importance of his proposed work for C-V-H-.Argued the field's importance, not the endeavor's
The Petitioner also asserts that his business plan, which includes projections for job creation and revenue, shows that he will employ 10 individuals with a total payroll of approximately $150,000, and also will support indirect jobs. He previously indicated that at the time of filing, C-V-H- employed 4 workers and contracted with 5 companies to provide maintenance services, supporting an additional 20 indirect jobs. An endeavor may be nationally important if it has significant potential to employ U.S. workers or has other substantial positive economic effects, especially in an economically depressed area. Dhanasar at 890. But the Petitioner has not demonstrated that the creation of lOjobs in the I Imetropolitan area, with an average salary of $15,000, as well as potentially dozens of low-wage indirect jobs, would have the broader implications necessary for a showing of national importance. In addition, the Petitioner states in his business plan that has an unemployment rate lower than the national average, as well as a robust tourism industry, and is thus not an economically depressed area.
While the evidence shows that the Petitioner's proposed serve the endeavor has the potential to existing well-developed tourism industry in the area, he has not established that it would have broader implications for the industry or would have substantial positive economic effects for the area.No broader implications shown Per the above analysis, we agree with the Director and conclude that the Petitioner has not established that his proposed endeavor is of national importance, and therefore does not meet the first prong of the Dhanasar analytical framework.
C. Member of the Professions Holding an Advanced Degree
Although we dismiss the appeal as moot, and because the proposed endeavor is not of national importance, we further note that the Petitioner's statement in his brief that the Director found him eligible as a member of the professions holding an advanced degree is incorrect. The Director specifically did not base her denial of the petition on the Petitioner's eligibility for the EB-2 classification, but still went into detail regarding the deficiencies in the evidence of the Petitioner's educational credentials. We incorporate that part of the Director's decision by reference. 4 Despite having been notified of these deficiencies, the Petitioner does not address them on appeal. So we conclude that the Petitioner has not established that he possesses a foreign degree that is equivalent to either an advanced degree or a baccalaureate degree from an accredited college or university in the United States, and he is therefore not eligible as a member of the professions holding an advanced degree.
Conclusion
The appeal is dismissed as moot. In addition, as an additional grounds for dismissal, the Petitioner has not established his eligibility for a national interest waiver under the first prong of the Dhanasar analytical framework. Since a petitioner must meet all three prongs to establish that they merit a national interest waiver, the identified basis for denial is dispositive of the Petitioner's appeal, and we 4 The deficiencies noted by the Director are sufficient to show the Petitioner's ineligibility as a member of the professions holding an advanced degree, as he has not established that he possesses the foreign equivalent of an advanced degree or a bachelor's degree from an accredited college or university in the United States.Degree not shown to be a U.S. advanced degree equivalent We add that the record also lacks an evaluation ofhis educational credentials. official transcripts from the _______________ relating to his technician diploma, and the required translator's certification for the English translations ofhis diploma and transcripts froml I p. 5 decline to reach and hereby reserve the Petitioner's appellate arguments regarding the second and third prongs of the framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). We further reserve the issue of the Petitioner's eligibility as an individual of exceptional ability.
ORDER: The appeal is dismissed.